Opinion
43577.
SUBMITTED APRIL 2, 1968.
DECIDED MAY 7, 1968.
Action for damages. Walker Superior Court. Before Judge Painter.
Shaw, Stolz Fletcher, Irwin W. Stolz, Jr., for appellants.
Frank M. Gleason, for appellee.
1. The allegations of the instant petition presented a question for the jury since they did not establish that the deceased failed to exercise ordinary care for her own safety.
2. Construing the evidence adduced on motion for summary judgment most strongly against the movant, there was an issue as to the material facts and the trial judge did not err in denying the motion.
SUBMITTED APRIL 2, 1968 — DECIDED MAY 7, 1968.
Thomas L. Nichols, as administrator of the estate of Mrs. Anna L. Bass, brought suit to recover damages for medical and funeral expenses arising out of the injury, final illness and death of the deceased. The petition alleged in part that: on July 11, 1963, the deceased was employed by the defendants, Mr. and Mrs. J. A. Horton, to care for their children during the time they were away from home; the deceased had performed this duty on that date until approximately 12:15 p. m. when she received a fatal injury; there was a small throw rug made of light material situated on the floor in front of the kitchen sink; the rug did not have any type of adhesive or rubber base attached to it, but was lying spread on the floor where it could be easily kicked or shuffled by anyone walking thereon; the kitchen was long and narrow; the defendants were negligent in leaving the throw rug in such a position that anyone walking from any point in the kitchen to the kitchen sink would be required to step on the rug; the floor was highly waxed and buffed to a high polish and was in a slick condition; the defendants were negligent in leaving the throw rug on the floor without a proper anchor or adequate rubber backing or other device; this negligence constituted the proximate cause of the deceased's injury.
The petition further alleged that it was impossible to determine whether the floor was slippery by looking at it since the slippery condition could only be determined by touch; the defendants negligently failed to keep the floor in a safe condition and permitted wax and other substance to remain on the floor; the defendants were negligent in failing to warn the deceased of this unsafe condition; after having fed the defendants' children their lunch the deceased proceeded to walk across the floor to a point less than two feet directly in front of the kitchen sink on which a number of dirty dishes had been placed; as she proceeded to the sink to wash the dishes left from the children's lunch she stepped on the throw rug, slipped and fell.
A general demurrer was filed to the petition which was overruled. The defendants then filed a motion for summary judgment which was denied. The defendants appealed and the case is here for review.
1. Enumeration of error 1 complains that the trial judge erred in overruling the general demurrer to the petition. With this contention we cannot agree Code § 105-401 provides: "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Under the facts alleged in the petition it cannot be held as a matter of law that the defendants were not aware of the alleged dangerous conditions that existed. Also, the allegations did not establish that the deceased failed to exercise ordinary care for her own safety, because the petition alleged it was impossible to determine whether the floor was slippery or not from looking at it. Under many decisions of this court the allegations presented a question for the jury. Choate v. Carter, 98 Ga. App. 375 ( 105 S.E.2d 909); Findley v. Lipsitz, 106 Ga. App. 24 ( 126 S.E.2d 299); Smith v. 670 New Street, Inc., 111 Ga. App. 35, 38 ( 140 S.E.2d 495).
2. The remaining question for determination is whether the trial judge was correct in denying the motion for summary judgment.
In support of the defendants' motion for summary judgment several affidavits and interrogatories, together with the answers thereto, were introduced. The appellants contend that this evidence showed in part that: (1) The floor of the kitchen was not slippery; (2) the rug was of ample size and thickness so as not to be flimsy as alleged; (3) the coloration of the rug was such that it was readily visible to anyone walking in or out of the kitchen; (4) the deceased had worked for the defendants for more than a year and the rug had been on the floor for approximately six months; (5) the deceased had been in the defendants' home for several hours on the date in question and had prepared the noon meal; (6) the deceased had actual knowledge of the presence of the rug.
In opposition to the motion the plaintiff introduced several affidavits which stated that the deceased had related the facts as to how she received her injury. The facts stated in the affidavits were substantially the same as the allegations of the petition in regard to the condition of the floor, rug and the circumstances under which the deceased fell. There was an additional statement that the deceased was 74 years of age, her eyesight was not good and that she could not tell what the condition of the floor was by looking at it.
The appellant contends that much of the evidence offered by the plaintiff was hearsay. The evidence submitted establishes that there were no witnesses to the alleged fall except the deceased. Under the holding in Moore v. Atlanta Transit System, 105 Ga. App. 70 (2) ( 123 S.E.2d 693), the statements made by the deceased to the affiants were admissible.
Construing the evidence adduced in the form of affidavits, etc., most strongly against movant there was an issue as to material facts and the enumeration of error is without merit.
Judgment affirmed. Bell, P. J., and Hall, J., concur.